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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6952
Experience:  Significant experience in all areas of employment law.
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I am a quality manager at a California casting facility, and

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I am a quality manager at a California casting facility, and I have an employee that is exempt, but since I raised her salary to the base pay of a QE zshe has not performed adequately. I tried to talk to her and she ended up angry and I ended up in HR. I tried to e-mail her and tell her where the issue's are that I am not seeing performed and I ended up in HR. She then go with HR to plan a personal goal worksheet with, around my back or without my knowledge, and I am not going to approve it because she has proven every way there is that she is not capable.

This salaried woman had a ten year live-in affair with my VP, and had I known up front before she came into my department, I would not have hired her. She informed the HR manager about her affair with my VP, and in turn the HR manager went to the VP to let him know she knew. Together the two of them decided that they can be totally objective with the employee and the situation. They can not be objective, because he lived with her, or rather she lived with him, and the HR manager and her are very close friends. Neither can be objecgtive in this work performance situation, and I need some advice please.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am sorry to hear about this understandly frustrating situation.

Would you be so kind as to clarify the specific question you have regarding the circumstances?

Also, can you tell me whether you are being harmed in some way as a result of your inability to control this employee (i.e., is her incompetence putting your job in jeapardy?)

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

Ok, my stress level is climing still because she has just come from HR, and now the HR manager is requesting that I meet with said employee to discuss her goals and objectives for the year so she can move up. This after I said no to the Hr MANAGER. THIS EMPLOYEE IS NOT CAPABLE NOR CAN SHE PERFORM TO THE LEVEL OF EXPECTATION THAT SHE WAS ASSIGNED. So, sorry I did not notice that I had caps on. I feel like I am in a catch 22 situation and I am a hairs breath away from having a stress stroke here at work.


My own remaining staff doe not want her a part of any team they are on, because she is not capable. Working with this knowledge is only making matters worse. I don't know how to handle this anymore, and still handle the other 60 people under me, let alone the whole facility where quality is concerned.


 

Customer: replied 1 year ago.


I am so sorry I did not see I failed to send the response you requested.


 


How do i appropriately discipline an employee that is depending on the VP who she had a 10 year affair with and the HR manager who she is close friends with, when she is totally depending on them both to take care of her. She feels that my VP owes her a management job. She feels tht she is totally protected by the HR manager because she knows about the affair she had with the VP.


 


2.l Do I feel I am being harmed. It stress that has sent me to mental health started after I hired this employee into my department and she started dumping on me about her affair with my boss, to the extent that I know more about my boss's personnal life than any employee of his has a right to know. Yes, I personnaly feel I am going to lose my job over this, and no one I can talk to here without spilling my guts for getting any kind of back up. It's like a catch 22 situation, damned if you do, damned if you don't. I am at a total loss, and going to mental health once a week to spill my guts, still does not help the situation. My VP and the HR manager want to dictate to me (Quality Manager) what I will do with this employee that is not performing, and I along with my staff have had to go behind her and do the work. This is just too much, I need some very quick and serious advice, without it being, leave the job I love to do and have done for over 30 years.

Expert:  Patrick, Esq. replied 1 year ago.
Karen,

Thank you for your responses. I just wanted to let you know that you caught me as I am stepping out of my office momentarily and that I do plan to respond, but that it likely will not be for approximately 60 minutes.

If you would prefer not to wait, I can release the question back out to other experts, who might be able to assist you sooner. Just let me know.
Customer: replied 1 year ago.


I will wait on you, thank you very much.

Expert:  Patrick, Esq. replied 1 year ago.
Karen,

Thank you so much for your patience in allowing me to respond

I know that you don't want to hear "leave the job you love," and that certainly is not what I am going to tell you to do. However, I also hope that you can appreciate my limitations in explaining how the law actually operates under the circumstances, even if it is not favorable, and even if it is not what you want to hear. I trust that you will find value in that.

I say all this because an employee's rights under the circumstance you describe are extremely minimal. This is because the state of California ascribes to the doctrine of "at will" employment, which provides that either party (employer or employee) may terminate the employment relationship at any time and for any non-discriminatory reason, regardless of whether the basis is fair or reasonable. Since employers can terminate employees for any reason, employers can also make employment decisions at their discretion, again without regard to what is fair or reasonable.

The courts have made very clear that, absent discriminatory motives (i.e., race religion, gender, ethnicity, etc.), they will not be the arbiters of general claims for workplace unfairness, reasoning that if such cases were allowed to proceed, hundreds would be filed every day. This is certainly not to diminish your frustration, which is justified, but rather to explain the policy behind the law, which may assist in your understanding.

The only conceivable basis for a claim that would arise from the facts you have described is a claim for discrimination on the ground that an employee having a sexual relationship with your VP is enjoying favorable treatment as a result their gender.

Title VII of the Civil Rights Act of 1964 prohibits discrimination that occurs "because of [an] individual's sex…" The problem with a discrimination claim on this basis, however, is that courts have rather consistently held that favorable treatment occurring as a result of a romantic relationship is not favorable treatment "because of sex" within the meaning of Title VII, but rather is favorable treatment because of a personal relationship, which is not illegal.

Again, since the law provides no remedy for workplace unfairness that is not premised on a discriminatory motive (those being race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation), the treatment you are describing, while completely unfair and unprofessional, is probably not illegal.

All of the above noted, it is expensive to re-hire and re-train new employees, and if you were to be fired, you could generally file for unemployment which would affect your employer's unemployment insurance premium. This is to say that employers generally do not want to terminate employees any more than employees want to be fired, and so employers tend to be rationale about these sorts of decisions.

For these reasons, the best course of action in the circumstance is an interpersonal approach, explaining your feelings in writing and offering some sort of compromise, if at all possible. I realize that you may have already done this, but since there are no legal remedies, it may be an approach worth revisiting.

I am terribly sorry to deliver this news to you, as I realize it is not what wanted to hear. Nonetheless, I trust that you will appreciate my limitations is explaining how the law actually operates under these circumstances, despite the law not being favorable to your circumstances. Indeed, to provide anything less would be unfair to you and unprofessional of me.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 1 year ago.


Does this include the fact that the HR manager is demanding that I reward the employees poor performance with new tasks that will help her move up in the company? On top of that I keep a daily work journal, and she told me in the presence of my VP that just because I maintain a work journal of everything that talkes place, its nothing but paper and means nothing? It's just very upsetting that I have to sweep my morals and values under the carpet, to reward a poor performer, which is going to set a very bad presidence for the rest of my personnel, which is going to make things even worse, sense they have asked not to work with her.

Expert:  Patrick, Esq. replied 1 year ago.
Karen,

I completely understand your concerns and frustrations. However, as noted above, the law simply does not require fairness in the workplace. Employers can be as unfair and unreasonable as they want with their employment decisions and, absent discriminatory motives, employees will have no recourse.

I truly wish I could tell you that what you describe is illegal, but I would be doing you a tremendous disservice by misrepresenting the law, and I trust that you are not here for misinformation.

Please do not hesitate to let me know if you have any further questions or concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6952
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 2 other California Employment Law Specialists are ready to help you

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